Fifth Circuit Court Panel Finds Designation of Muslim Groups During Holy Land Foundation Trial as Unindicted Co-Conspirators In Error

October 24, 2010 - San Francisco, CA - - In a still developing story a Fifth Circuit panel has determined that the government acted improperly in publicly naming the North American Islamic Trust, and apparently many other American Muslim organizations as unindicted co-conspirators during the hard fought Holy Land Foundation prosecution.

"According to the appeals ruling, the government acknowledged that not sealing the list was an oversight, and further said that by titling the list with the double designation "co-conspirator/joint venturer" it was not necessarily ascribing involvement in criminal activity to the listed groups." [source,]

Politico quoting the decision:

"The [district] court held that NAIT's motion was properly filed and its Fifth Amendment right had been violated by its public naming," Appeals Court Judge Emilio Garza wrote for a unanimous panel including Judges Fortunato Benavides and Marcia Crone. "The Court held that the Government did not argue or establish any legitimate government interest that warranted publicly identifying NAIT and 245 other individuals and entities as unindicted coconspirators or joint venturers, and that the Government had less injurious means than those employed, such as anonymously designating the unindicted co-conspirators as 'other persons,' asking the court to file the document under seal, or disclosing the information to the defendants pursuant to a protective order." [source, Josh Gerstein, Judge: Feds violated U.S. Islamic group's rights, Politico,]

It appears that none of the formerly listed groups were party to this lawsuit, though they could be positively affected by the ruling as this process goes forward.

Chief prosecutor in HLF - James Jacks - was not available for possible comment when contacted by Politico who broke the story.

It has been reported that the feds are mulling over their options regarding a possible appeal. The full implications of this decision are as yet undetermined, though it may well serve to cloud the taint that the former federal designation had on many prominent American Muslim groups.

The possibility that this decision will serve to rehabilitate the reputations of those named in the HLF attachment "A" is complicated by the following passage in the Fifth Circuit Court of Appeals' decision, which clearly shows that the government erred not in characterizing the groups in the manner outlined in attachment "A", but that said document should not have been made public, rather than being sealed.

Moreover the ruling states that the United States District Court for the Northern District of Texas had not violated NAIT's rights by failing to expunge its name from this attachment.

"Just as the context of a party's naming as a possible coconspirator is relevant to whether the naming was wrongful and whether it should be sealed, context is relevant to whether the naming of a party should be expunged. The allegations against NAIT were not raised in an indictment or in a factual resume offered during a plea proceeding, but rather in a Government brief in a fully contested case. Although NAIT appears to have been mentioned in anticipation of a possible Rule 801(d)(2)(E) dispute, no actual Rule 801(d)(2)(E) determination involving NAIT was ever made. It should be clear, therefore, that NAIT's inclusion in the brief was simply an untested allegation of the Government, made in anticipation of a possible evidentiary dispute that never came to pass. The allegation did not improperly enjoy the imprimatur of grand jury approval, nor was it erroneously conceded, implicitly or explicitly, as part of any plea. The allegation was offered in furtherance of a legitimate purpose, albeit a purpose that could have been equally well-served by filing Attachment A under seal. See United States v. Anderson , 55 F. Supp. 2d 1163, 1169 (D. Kan. 1999) ("The government clearly had a substantial interest in identifying these coconspirators for 801(d)(2)(E) purposes."). It is clear that the Government's procedural error, therefore, was its failure to file Attachment A under seal, not its decision to try to characterize the scope of the charged conspiracy or to lay the groundwork for relying on Rule 801(d)(2)(E). In light thereof, the district court did not abuse its discretion in declining to expunge the mention of NAIT in the newly sealed attachment...." [source, Fifth Circuit Court of Appeals, Case No. 09-10875,

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